GHANCHI SHAKURBHAI JUMABHAI GHOGHARI Vs. KALIBEN

JUDGEMENT

(1.) Heard learned senior advocate Mr.Anshin Desai assisted by learned advocate Mr.Zalak Pipalia for the petitioners and learned advocate Mr.Digant Kakkad for the respondent.

(2.) The petitioners herein are the parties who proposed themselves to be joined in the proceedings of Regular Civil Suit No.59 of 2013. They filed application Exh.41 for their impleadment. Learned Principal Civil Judge, Visavadar, rejected the application of the petitioners by his order dated 05th September, 2014. It is this order which is brought under challenge in this petition filed under Article 227 of the Constitution.

(3.) The petitioners claim to be the owners of land bearing Survey No.4 as well as Survey No.5 Paiki situated at Village Manandiya, Taluka Visavadar, Junagadh. They purchased these two parcels of lands by registered sale deed dated 03rd May, 1964. It is their further case that they are also the owners and in legal possession of the and bearing Survey No.8 and thus have been in possession of all the three survey numbers since last 50 years. In the Village Form No.6, Mutation Entry No.111 was indeed on 28th November, 1965 in favour of the petitioners. 3. 1 Respondent No.1 herein instituted Regular Civil Suit No.59 of 2013 against the defendants - respondent Nos.2/1 to 2/6 herein. The subject matter of the said suit is the land bearing aforesaid three survey numbers. The suit is for partition claiming one-half share and with further prayer of permanent injunction and mesne profit. It is in this proceedings of the suit, the aforesaid application Exh.41 came to be submitted by the petitioners. 3. 2 It is the case of the petitioners also that in the aforementioned registered sale deed dated 03rd May, 1964 which conveyed the land bearing Survey Nos.4 and 5 in favour of the petitioners, inadvertently Survey No.8 was mentioned. This led the petitioners to institute Special Civil Suit No.57 of 2011 before the court of learned Senior Civil Judge, Junagadh, praying for declaration and seeking correction in the registered sale deed that instead of Survey No.8, it would require to reflect Survey Nos.4 and 5. 3. 3 As far as the Regular Civil Suit No.59 of 2013 from the proceedings of which this petition arises, the petitioners' specific plea is that the civil suit is collusive. It is the supportive submission by the petitioners that summons in the suit was issued and the service was completed on 09th January, 2014, still however, the defendants did chose to appear in the proceedings either personally or through their advocate. The Court passed order of closing the right of the defendants for filing written statement. 3. 4 As the defendants did appear and did opt to file written statement for which the right is also closed, the petitioners apprehend to submit that plaintiff and defendants have hobnobbed together. Learned senior advocate for the petitioners submitted that if the suit is withdrawn by the plaintiff, it would cause serious prejudice to the petitioners who have been holding the possession of the suit lands since five decades in capacity of legal owners.